MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  20 June 2000
	DOCKET NUMBER:   AR1999031480

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That a criminal report be removed from his records.  In effect, that his name be removed from the title (subject) block of a Criminal Investigation Division (CID) Report of Investigation (ROI).  He submits copies of a Commander’s Report of Disciplinary Action and a Rights Warning Waiver Certificate.

APPLICANT STATES:  That he has not been charged with a crime and this information is incorrect.  He was not punished with an Article 15 for fraud.  This incorrect information has caused a severe hardship in applying for employment.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted for active duty from the ARNG on 24 March 1989 as a hospital food service specialist.  He was promoted to grade E-4 effective 1 January 1990.  He reenlisted for 4 years on 30 September 1992.  He was promoted to grade E-5 effective 1 May 1994.

According to the available record a Report to Suspend Favorable Personnel Actions (FLAG) was initiated effective 17 November 1994.  The reason cited was adverse action.  A 4 January 1996 Rights Warning Waiver Certificate shows that the applicant was questioned by the CID as a suspect for larceny of government funds and making a false official statement.

A DA Form 4187 (Personnel Action), dated 31 July 1996, states that the command was requesting the applicant be involuntarily separated because he had been reduced to grade E-4 effective 17 July 1996.

A Commander’s Report of Disciplinary Action, dated 2 August 1996, notes that the applicant was punished under Article 15, UCMJ on 29 July 1996 for fraud from September 1992 through January 1996.  The punishment included reduction to grade E-4.  The form also notes that the applicant was being processed for separation based on his retention control point as an E-4 with separation estimated at 5 October 1996.  A copy of the punishment is not in the available record.

Effective 29 September 1996, the applicant was separated under the authority of AR 635-200, chapter 16.  His DD Form 214 (Report of Separation) shows that he had 7 years, 6 months, and 6 days creditable service and no lost time.  His prior active duty and inactive service are not reflected.

AR 635-200 provides the separation policy for enlisted personnel.  Chapter 16 provides, in pertinent part, for the separation of soldiers based on reductions in authorized strengths, normally of a specified class of personnel.

Army Regulation 195-2, then in effect, stated, in pertinent part, that requests to amend CID ROI would be granted only if the requester submitted new, relevant, and material facts which would warrant such a revision.  When the requested amendment was to delete a person's name from the title block of an ROI, the request would be granted only to delete a person's name from the title block will be granted only if it can be conclusively established that the wrong person's name has been entered as a result of mistaken identity.  The regulation further stated that the decision to title a person for an offense was an investigative determination independent of any judicial, nonjudicial, or administrative action taken against the individual, or the results of such action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The available records do not show, nor has the applicant provided adequate documentation, that he was not the proper subject of a criminal investigation and properly titled in the CID ROI.  There is adequate evidence that he was punished under Article 15, UCMJ for the offense of fraud and reduced to grade E-4, which ultimately resulted in his early separation.

2.  In accordance with pertinent regulations, the decision by CID to title a person for an offense is an investigative determination independent of any judicial, nonjudicial, or administrative action taken against the individual, or the results of such action.  If at the time of investigation of an alleged offense, probable cause existed to believe that a particular person committed the alleged offense, the CID is justified in titling that individual.  Information which is developed at a later date and which casts doubt upon the titling decision, or completely exonerates the person titled, will not change the original titling decision except by the addition of an amendment to the original report.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__VC___  __EL___  ___JA__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999031480	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  134.00	Removal of Tilting	
2.		
3.		
4.		
5.		
6.